Citation Nr: 9819753
Decision Date: 06/26/98 Archive Date: 07/06/98
DOCKET NO. 94-26 580 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating for postoperative ileal
adhesions, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
K. J. Loring, Associate Counsel
INTRODUCTION
The veteran had active military service from February to May
1972.
This matter arises from a January 1993 rating decision from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Cleveland, Ohio, which denied the benefit sought on
appeal. The case was referred to the Board of Veterans’
Appeals (Board), and remanded for further development in
April 1996. In concert with the remand, the RO requested a
signed release from the veteran to obtain additional medical
records. The veteran failed to respond to the request and
also canceled a sigmoidoscopy which was recommended by the VA
examiner. The veteran was notified by the RO that failure to
appear for a scheduled medical examination could adversely
affect his claim. 38 C.F.R. § 3.655 (1997).
As the development requested has been completed, the case has
been returned to the Board for review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has severe, sharp, shooting
pains in his lower abdomen that occur between one to three
times a week without warning. He asserts that these pains
are the result of the surgery he had during service for ileal
adhesions and that his condition is more disabling than
reflected by the currently assigned rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against a disability evaluation in excess of 10
percent for postoperative residuals of ileal adhesions.
FINDING OF FACT
The postoperative residuals from the veteran’s surgery for
ileal adhesions are productive of no more than moderate
impairment as characterized by occasional abdominal pain.
CONCLUSION OF LAW
The schedular criteria for a disability evaluation in excess
of 10 percent for postoperative ileal adhesions have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.114, Diagnostic Code 7301 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminarily, the Board finds that the veteran’s claim is
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
When a veteran is seeking an increased rating (as opposed to
entitlement to service connection), an assertion of an
increase in severity is sufficient to render the increased
rating claim well-grounded. Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities. Where entitlement
to compensation has been established and an increase in the
disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55, 58 (1994).
The veteran was granted service connection for postoperative
ileal adhesions effective May 1972. Service medical records
show that the veteran had an appendectomy in 1971, prior to
service. Approximately one month after his enlistment he
complained of abdominal pain. A laparotomy performed in
March 1972 revealed that the veteran had an intestinal
obstruction due to ileal adhesions. The veteran was
separated in May 1972 due to immature personality.
Private medical records covering the period July 1979 through
October 1993, show that the veteran has had diagnoses of
Boeck’s sarcoidosis, gastritis and a bleeding duodenal ulcer;
ileitis, partial bowel obstruction, and pancreatitis, without
any evidence of current adhesions or symptomatology
attributable to adhesions.
In March 1994, the veteran appeared for a local hearing. He
testified that he had nine inches of his intestine removed
during service when the laparotomy was performed, and that he
has had problems ever since. He reported that he had sharp
abdominal pains regularly. He also stated that he had
heartburn, but that he took no medication for either problem.
He testified that he self-medicated with baking soda and had
not sought any outside medical treatment since 1983 when he
was evaluated for abdominal pain and found to have a bleeding
ulcer.
In April 1994, he was afforded a VA examination. He
complained of post prandial diarrhea and heartburn. The
physical examination of the abdomen revealed a well-healed 18
centimeter vertical scar from the epigastric to the
suprapubic area, with moderate amounts of tenderness noted in
the epigastric area on deep palpation. Bowel sounds were
physiologic and no organomegaly was present. There was no
evidence of vomiting, recurring hematemesis, or melena. An
upper GI (gastro-intestinal) series was normal. The
diagnosis was reported as: gastritis; status post surgery for
repair of bowel obstruction with residuals; irritable bowel
syndrome.
In January 1997, the veteran was afforded further VA
examination. He complained of episodes of severe, sharp pain
at the proximal portion of the abdominal incision. He
reported that the pains have decreased in frequency since
service and occur only once or twice a week. The veteran
also complained of frequent, loose, watery stools alternating
with constipation, triggered by eating. His medical history
was noted, including his statement that nine inches of his
colon had been removed. The records of the surgery performed
during service were not available and the examiner was unable
to confirm the extent of the surgery during service.
However, the examiner noted that a barium enema performed in
1983 showed a normal colon throughout, including the cecum
and terminal ileum.
The physical examination revealed a midline laparotomy scar
and an appendectomy scar in the lower quadrant. There was
slight palpation tenderness in the ara but it was not
constant and not accompanied by guarding. The examiner
reported a primary diagnosis of irritable bowel syndrome.
There was no evidence to show that the veteran had a partial
resection of the colon based upon the results of a barium
enema study. The examiner also found it noteworthy that the
veteran had several medical evaluations of his digestive
system during 1982-1983 without evidence of abnormality
except a deformed duodenal bulb. The examiner concluded that
there was no evidence to show that the previous ileal
adhesions had any relationship to current symptoms. The
examiner also recommended a flexible sigmoidoscopy to
evaluate the veteran’s diarrhea and a consultation with a
motility expert to evaluate fecal incontinence.
The veteran is currently assigned a 10 percent disability
evaluation for ileal adhesions pursuant to 38 C.F.R. § 4.114,
Diagnostic Code 7301 which refers to peritoneal adhesions.
His disability is rated under this particular code as most
analogous to his service-connected condition. 38 C.F.R.
§ 4.20 (1997). According to Diagnostic Code 7301, a 10
percent evaluation is warranted for moderate adhesions with
pulling pain on attempting work or aggravated by movements of
the body, or occasional episodes of colic pain, nausea,
constipation (perhaps alternating with diarrhea) or abdominal
distention. A 30 percent evaluation is warranted for
moderately severe adhesions as characterized by partial
obstruction manifested by delayed motility of barium meal and
less frequent and less prolonged episodes of pain.
In the instant case, the residuals of the veteran’s
postoperative ileal adhesions are not shown to be productive
of more than moderate impairment. He has reported symptoms
of diarrhea and constipation with episodic pain but the
medical evidence indicates that these symptoms are most
likely due to irritable bowel syndrome with no relationship
to the surgery for ileal adhesions. Moreover, he reported
that his symptoms have decreased recently, occurring only
once or twice per week. Although the veteran has reported
having several inches of his intestine removed during
service, there is no competent medical evidence to confirm
this report. The medical records of the surgery performed
during service are not available and the results of a barium
enema indicate that there has been no resection of the colon.
In summary, the Board finds that the medical evidence shows
that the veteran’s disability most nearly approximates that
of mild impairment consistent with a non compensable rating.
However, as the veteran’s 10 percent rating has been in
existence continuously since 1972, it is protected from
reduction and will remain undisturbed. 38 C.F.R. § 3.951(b)
(1997).
As the medical evidence does not support even a 10 percent
disability evaluation for residuals of postoperative ileal
adhesions, there is clearly no indication that a greater
evaluation of 30 percent would be warranted.
Accordingly, as the preponderance of the evidence is against
an increased evaluation, the claim must be denied.
The Board considered and found no evidence in relative
equipoise, warranting application of the doctrine of
reasonable doubt. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet.App. 49, 54 (1990).
ORDER
Entitlement to a disability evaluation in excess of 10
percent for postoperative residuals of ileal adhesions is
denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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